THIS MASTER SERVICES AGREEMENT (“MSA”) is entered into by and between Advantio Ltd., (“Advantio”) a company incorporated under the laws of Ireland, company number 478729, with a registered address of 4 Harcourt Centre, Harcourt Road, Dublin 2, DO2 HW77, Ireland, and the customer, ____________________, a company registered under the laws of __________, with registration number _______________) (“the Customer”) (each a “Party” or collectively “Parties”). This Agreement will commence with effect from the date of the last signature set out below, (the “Commencement Date”) (notwithstanding that it may be executed after this date) and will continue until terminated in accordance with its terms, or in accordance with the date of termination set forth in a Statement of Work or a Proposal (the “Term”).
Advantio and Customer agree to the following terms and conditions:
1. SERVICES. During the Term and subject to the terms and conditions of this MSA, Advantio agrees to provide certain security and consulting services (“Services”) and Customer agrees to purchase such Services. A detailed description of the Services (“Service Description”) provided by Advantio, as well as the Fees (as that term is defined herein), and the Term, and any additional applicable terms and conditions, will be set forth in the Statement of Work and/or Proposal (hereinafter “Service Document”).
2. ORDER OF PRIORITY. In the event of a conflict between the terms of this MSA and a Service Document, the Service Document will control. Where the Customer has received a Proposal and not a Statement of Work, the Fees, Service Description and Term, and any additional applicable terms and conditions, set forth therein will, upon execution of this MSA, become binding on the Parties and will be deemed to have been fully incorporated in this Agreement as if set forth herein. Where Customer has received or will receive a Statement of Work (SOW), the Fees, Service Description and Term, and any additional, applicable terms and conditions, will be set forth therein, and the SOW will be deemed a separate, binding Agreement. Any provisions in the Proposal and/or SOW in relation to Fees, Service Description and Term will, only in the event of a conflict, have priority over any provision in this MSA.
3. AUTHORISATION TO PERFORM SERVICES. Upon execution of this MSA and any Service Document, Customer gives its consent and authority for Advantio to:
3.1 in connection with the provision of all Services, access and utilise as necessary the Customer’s systems and network resources and provide Advantio as necessary with target internet protocol addresses;
3.2 use various methods and software tools to probe network resources for security-related information and to detect actual or potential security flaws and vulnerabilities;
3.3 provide Services on a third party’s network resources, and access same, where the Customer will have first obtained the consent and authority of such third party for Advantio to perform the Services;
4. RISKS AND LIMITATIONS
4.1 The Services, to the extent they relate to Payment Card Industry (PCI) compliance and consultancy, are an assessment, as of a particular date, of whether Customer’s systems, networks, assets, and any controls meet the applicable PCI standards. Mere compliance with PCI standards may not be sufficient to eliminate all risks of a security breach of Customer’s systems, networks and assets.
4.2 With respect to any Services, Advantio cannot guarantee: (i) the outcome of its testing, assessment, forensics, or remediation methods; and/or (ii) that all weaknesses, noncompliance issues or vulnerabilities will be discovered.
4.3 Advantio does not offer any implied or express warranty that the results of security tests, assessments or audits performed as part of the Services demonstrate that the Customer’s information systems are (i) protected from all forms of attack, and (ii) free from all vulnerabilities.
4.4 Customer acknowledges and accepts these Risks and Limitations.
5. Advantio’s Rights and Obligations
5.1 Advantio will:
5.1.1 perform the Services in a professional manner in accordance with industry standards;
5.1.2 provide the Services in conformity with the specifications in the Proposal or SOW;
5.1.3 perform the Services under the assumption that the Customer has all appropriate consents, permits and permissions from its group companies, affiliates and from its employees, agents and sub-contractors, and any necessary third parties;
5.1.4 provide the Services in accordance with all applicable laws, regulations, regulatory requirements and codes of practice, as amended and in force from time to time;
5.1.5 endeavour to inform the Customer of the risks they face and identify all such vulnerabilities, threats and non-conformities;
5.1.6 not delete or remove any proprietary notices or other notices contained within or relating to materials supplied or made available by or on behalf of the Customer in connection with this Agreement (the “Customer’s Materials”);
5.1.7 not alter, store, copy, disclose or use Customer's Materials, except as necessary for the performance by Advantio of its obligations under this Agreement or as otherwise expressly authorised by this Agreement in compliance with the provisions of this Agreement;
5.1.8 preserve, so far as possible, the integrity of Customer's Materials and prevent any loss, disclosure, theft, manipulation or interception of Customer's Materials;
5.1.9 notify Customer as soon as it becomes aware that any of the Customer's Materials are lost, become corrupted, are damaged or are deleted accidentally.
5.2 Advantio does not provide legal advice or services; none of the Services will be deemed or construed as legal advice; and Customer is responsible for obtaining independent legal advice;
5.3 any customer reports provided by Advantio in connection with any Services will not be deemed to be legal opinions and may not and should not be relied upon as proof, evidence or any guarantee or assurance as to Customer’s legal or regulatory compliance.
5.4 Advantio is not responsible for updating its reports and assessments, or for the provision of any services to the Customer after the termination of this Agreement or any Service Document.
5.5 Advantio is required by the Payment Card Industry Security Standards Council (PCI SSC or Council) to satisfy certain obligations in respect of sharing and retention of Customer data. As required by the Council, Advantio may or will:
5.5.1 share information with the payment card brands, relevant acquiring banks and PCI SSC, including but not limited to, status updates, PCI reports, reports, action plans, and milestone plans;
5.5.2 retain assessment evidence, results and related materials for at least three (3) years, including but not limited to all digital and hard copy evidence created and/or obtained by or on behalf of Advantio in the course of a PCI Data Security assessment, which may include, documentation reviewed (policies, processes, procedures, network and dataflow diagrams), case logs, meeting agendas and notes, evidence of onsite and offsite activities (including interview notes), screenshots, config files, test results, and any other relevant information created and/or obtained;
5.5.3 make the assessment results and related materials available to PCI SSC and/or its affiliates upon request for a minimum of three (3) years after completion of the applicable PCI DSS assessment.
6. Customer Rights AND Obligations
6.1 The Customer will assist Advantio by promptly providing all information known or available and relevant to the Services, and in response to any request for same from Advantio. Customer acknowledges that any delay by the Customer may result in delay and rescheduling of the Services, and same may result in Cancellation and Rescheduling Fees set forth in Clause 10. Such information that Customer may be required to provide Advantio may include:
6.1.1 (i) specific details regarding Customer’s systems, networks, premises, equipment, data structures, protocols, procedures, diagrams and documentation, hardware and software and firmware as is reasonably required to perform the Services, including target internet protocol addresses; (ii) remote access to the Customer’s information systems; (iii) physical access to the Customer’s premises; and/or (iv) any other information and documents as is required to perform the Services. Customer will (i) be solely responsible for the adequate protection and backup of data and/or equipment used in connection with the Services. Customer hereby verifies that its backup procedure will enable the Customer to restore the Customer’s information systems to their pre-test state.
6.2 Where applicable and prior to Customer granting Advantio access to the Customer’s hardware and software, the Customer hereby warrants and declares that the Customer is the legal owner of the information systems to be tested and has authority to allow Advantio to perform the Services. Should the Customer not be the owner of any hardware or software, the Customer confirms that it has obtained such necessary consent from the legal owner of the designated information systems to be tested hereunder.
6.3 Customer acknowledges and accepts that the Services may possibly result in service interruptions or degradation of the Customer’s systems and accepts those risks and consequences. Customer further acknowledges that it is the Customer’s responsibility to restore network computer systems to a secure configuration after the completion of testing by Advantio. Customer confirms that it has implemented and maintained adequate backup systems in the event of interruption or degradation of its systems and that its backup procedure will enable the Customer to restore the Customer’s information systems to their pre-test state;
6.4 The Customer confirms, for itself and on behalf of its group companies or affiliates that it has procured, where necessary, the consent of its affiliates, employees, agents and sub-contractors for Advantio to carry out the Services.
6.5 The Customer will execute an authorisation and indemnity in favour of Advantio, where appropriate, in respect of any penetration testing activities and/or related technical security services.
6.6 The Customer will ensure that employees and independent contractors engaged by the Customer cooperate with Advantio to ensure the successful performance of the Services.
6.7 The Customer will provide Advantio’s personnel with suitable office space and facilities if and/or when an element of the Service requires an onsite visit at the Customer’s premises.
6.8 The Customer agrees to be bound by the terms and conditions of any third-party goods and/or services provided by Advantio to the Customer. Details of such terms and conditions will be furnished to the Customer in the relevant Service Document, where applicable.
6.9 Where, in connection with the Services, Customer has access to any portal, platform or shared space provided by Advantio or any third party, Customer shall be solely responsible for its employees’ and contractors’ use of and access to same. In the event that such Customer personnel are, for any reason, including re-assignment, termination or rescheduling, no longer required to have such access, Customer will take all necessary steps to (i) immediately notify Advantio of such reassignment, termination or rescheduling; (ii) to the extent possible, prevent any further access by such personnel. Breach of this provision may be deemed a material breach of this Agreement and Advantio reserves its right to seek damages and equitable relief in relation to same.
6.10 Upon the Termination of this Agreement, or upon conclusion of all Services under any Service Document, or at any time, Advantio may, as necessary and appropriate to protect the integrity, confidentiality and security of Customer data, limit and/or disable Customer’s access to any portal, platform or shared space provided by Advantio or any third party.
7. Non-Solicitation
7.1 For the duration of the Services and for an additional twelve (12) months from termination, neither Party will directly or indirectly solicit from the other Party, offer employment, employ or retain as an independent consultant, any person who was associated with the performance of the Services, (“Service Personnel”), or encourage such Service Personnel to terminate their relationship with the other Party, or attempt any of the foregoing, either for itself or for any other person or entity, except as explicitly agreed to in writing by both Parties. For the avoidance of doubt, where appropriate and the context requires, Service Personnel may be construed as referring to one person or more than one person.
7.2 In the event of a breach of this Clause by the Customer, the Customer will pay Advantio an Engagement Fee calculated on the basis of the “Recent Remuneration”, as that term is defined below, paid to such Service Personnel. The Customer agrees that such damages are a reasonable pre-estimate of the damages resulting from breach of this Clause:
7.2.1 Engagement of Personnel by the Customer during the duration of this Agreement – an engagement fee equal to 100% of Personnel’s Recent Remuneration.
7.2.2 Engagement of Personnel by the Customer between one (1) and six (6) months after the termination of this Agreement - an engagement fee equal to 70% of Personnel’s Recent Remuneration.
7.2.3 Engagement of Personnel by the Customer between six (6) and twelve (12) months after the termination of this Agreement - an engagement fee equal to 50% of Personnel’s Recent Remuneration.
7.2.4 Engagement of Personnel by the Customer between twelve (12) and eighteen (18) months after the termination of this Agreement - an engagement fee equal to 30% of Personnel’s Recent Remuneration;
7.2.5 “Recent Remuneration” means the salary or other compensation paid or payable by Advantio to the Service Personnel in the twelve (12) month period of the Personnel’s engagement or employment with Advantio prior to the event of breach, and where the employment or engagement was less than 12 months it shall be calculated as an annual equivalent.
7.2.6 The above Engagement Fee will become payable by the Customer to Advantio on the date the Service Personnel agrees to be engaged by the Customer. If this Agreement is still in force at the time of the engagement of the Service Personnel by the Customer, Advantio reserves the right terminate this Agreement at its sole discretion upon receipt of the Engagement Fee by Advantio from the Customer.
8. PAYMENT
8.1 In consideration of Advantio’s provision of Services, the Customer will pay to Advantio all Fees and expenses set forth in the relevant Service Document (hereinafter referred to as “Fee” or “Fees”). The Customer acknowledges and agrees that additional services, which are outside the scope of the Services set forth in the Service Document, may be required as a result of discoveries made during the execution of the Services. For the avoidance of doubt, no additional services will be provided by Advantio except under a written amendment to the Service Document. To the extent that additional services are required, Advantio and Customer may execute an amendment to the Service Document or to this MSA, as necessary.
8.2 The Customer will pay invoices in full within thirty (30) days of receipt. Payment will be made directly to a bank account nominated in writing by Advantio. Unless otherwise agreed to in writing by both Parties, all Fees due hereunder or under a Service Document will be made in the Euro currency.
8.3 Fees for all Services will be paid in advance of the provision of such Services.
8.4 Any invoice for Fees payable by the Customer which remains unpaid thirty (30) days after the due date will accrue interest at the statutory rate of interest as prescribed under the European Community’s [Late Payment in Commercial Transactions] Regulations 2012, calculated daily from the date due for payment until the date on which the obligation of the Customer to pay the sum is discharged in full [whether before or after judgment]. Such interest is deemed to be a reasonable pre-estimate of the loss. Customer will be liable for all collection expenses incurred by Advantio for delinquent amounts, including without limitation reasonable legal fees.
8.5 Where the provision of Services by Advantio to the Customer requires travel, the Customer agrees and acknowledges that Advantio may charge the Customer for reasonable and necessary travel or out-of-pocket expenses. Time spent travelling to the Customer’s premises will be charged to the Customer by Advantio at a day rate of fifty percent (50%) of the day rate of the assigned Personnel, based on the actual travel time used by Advantio in travelling to Customer’s premises.
8.6 Customer acknowledges that Advantio reserves its right to increase the Fees for the Services on an annual basis, effective on each anniversary date of this Agreement. Such increase in the Fees will be an amount equal to the proposed percentage change for the Consumer Price Index recommended for Ireland by the Consumer Statistics Office (www.cso.ie). For the avoidance of doubt, Advantio will not increase the Fees by more than five percent (5%) per annum. Advantio will provide the Customer with thirty (30) days’ written notice of such increase in the Fees for the Services.
9. CANCELLATION and RESCHEDULING FEES
9.1 The Customer agrees and acknowledges that Advantio will have scheduled and deployed Personnel to deliver the Services per this Agreement and the Service Documents. In the event that the Customer reschedules or cancels all or part of the Services, Advantio will incur significant operational disruption and cost. Therefore, Customer is not permitted to reschedule or cancel all or part of the Services without a valid reason.
9.2 In the event that the Customer cancels or reschedules all or part of the Services ten (10) or fewer business days before the commencement of such Services, or before any agreed-upon date for the provision of Services, Advantio reserves the right to charge a Cancellation and Rescheduling Fee equal to 100% of the Fees for such Services, together with additional costs associated with such cancellation or rescheduling. The Customer agrees that the Cancellation and Rescheduling Fees are a genuine pre-estimate of the losses likely to be incurred.
9.3 In the event that the Customer cancels or reschedules all or part of the Services more than ten (10) business days before the commencement of such Services, or before any agreed-upon date for the provision of Services, Advantio may, in is sole discretion, impose a Cancellation and Rescheduling Fee in respect of such Services. In this instance, such Fee will not exceed 75% of the Fees associated with the cancelled or rescheduled Services.
9.4 For the purposes of this Clause the date for “commencement” of Services and/or any schedule for the delivery of Services may be defined in the Proposal, the SOW, or in e-mail correspondence between the Parties.
9.5 For the avoidance of doubt, any cancellation or rescheduling that is solely the fault of Advantio will not result in the imposition of a Fee under this Clause.
10. AMENDMENT. Any amendments to this Agreement, or to any Service Document, including any change to the scope of the Services, and/or Fees, will not be valid and enforceable unless same is in writing and executed by the Parties.
11. Taxes. All Fees and amounts payable by the Customer to Advantio hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (hereafter collectively referred to as “Taxes”). The Customer will be solely responsible for payment of any Taxes, except for those taxes derived or based upon Advantio’s income. Customer will not withhold any Taxes from any amounts due to Advantio, however, if the Customer is compelled to make any such deduction, it will pay to Advantio such additional amounts as are necessary to ensure receipt by Advantio of the full amount which it would have received but for the deduction.
12. Equipment & Materials. All equipment and materials provided by Advantio for the provision of the Services are the property of Advantio. In the event of Termination of this Agreement or any relevant Service Document, all equipment and materials must be returned to Advantio. If the Customer does not return such equipment and materials, the Customer will be responsible for the then-current replacement costs of such equipment and materials.
13. Insurance. Advantio will for the duration of the Term ensure that it maintains in force insurance policies with reputable insurance companies, including professional liability insurance which will include terms and conditions that will cover Advantio’s potential liability under this Agreement. The Customer will ensure that it maintains in force appropriate insurance policies with a reputable insurance company, including public liability insurance. Advantio reserves the right to require that Customer produce copies of such policies for inspection by Advantio.
14. Representation and Warranties. Advantio’s Representations. Advantio represents that any materials used in connection with the Services will not (i) infringe on the Intellectual Property Rights (defined below) of any third party or any rights of publicity or privacy or (ii) violate any law, statute, ordinance or regulation. Customer’s Representations. The Customer represents that any materials, information, and documents provided to Advantio by the Customer for use in connection with the Services will not (i) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy or (ii) violate any law, statute, ordinance or regulation.
15. Warranty Disclaimer
15.1 The parties represent and warrant that they have full corporate right, power and authority to enter into this Agreement and to perform their obligations hereunder. The execution of this Agreement by either Party, and the performance by it of its obligations and duties hereunder, do not and will not violate any agreements to which it is also a party or by which it is otherwise bound; and when executed and delivered by it, this agreement will constitute legal, valid and binding obligations of it, enforceable against it in accordance with its terms.
15.2 Except as expressly set forth in these terms, there are no warranties or representations made under these terms with respect to the services, or otherwise, whether expressed or implied, including any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement of Intellectual Property Rights.
16. Indemnification
16.1 The Customer will indemnify Advantio from and against any liability or expense arising from a third-party claim based on: (a) any negligence of the Customer, or (b) the misuse of the Services by the Customer or a third party, including subcontractors, given access to the Services by the Customer. Advantio will indemnify the Customer from and against any liability or expense arising from a third-party claim based on any significant carelessness or intentional misconduct of Advantio.
16.2 In the event of a claim subject to indemnification hereunder, the indemnified Party will: (i) promptly notify the indemnifying Party of the claim, (ii) provide the indemnifying Party with reasonable cooperation and assistance, at the indemnifying Party’s expense, to defend such claim; and (iii) allow the indemnifying Party the opportunity to assume the control of the defence and settlement of such claim. The indemnified Party will be entitled to participate in the defence of such claim and to employ counsel at its own expense to assist in the handling of such claim. The indemnifying Party must obtain the prior written approval from a duly authorised signatory of the indemnified Party prior to entering into any settlement affecting the indemnified Party’s rights.
17. Limitation of Liability
17.1 Neither Party will be liable to the other, whether under an indemnity or for breach of contract or tort, for any indirect, incidental, special, punitive or consequential damages, costs, expenses or liability (including without limitation, any damages, costs, expenses or liability that are incurred by a Party due to lost data, lost revenues, lost profits, lost clients, loss of goodwill, loss of use, interruption of business, replacement costs or loss of access to the services). Advantio will not be liable for claims based on modifications or adaptations performed by anyone other than Advantio. In no event will Advantio’s aggregate liability under this Agreement exceed the Fees paid by the Customer in the previous twelve (12) month period from the date of a claim, less any amounts paid to Advantio by the Customer for any Services which have been accepted and/or approved by the Customer.
17.2 Nothing in this Agreement will exclude or limit either party’s liability for fraud, breach of third-party Intellectual Property Rights, bribery or corruption, death or personal injury resulting from the negligence of either party or any of its employees or agents, nor will they operate to exclude or limit any statutory rights which cannot be excluded or limited. Nothing in this Agreement will exclude or limit either party’s liability for fraud, breach of confidentiality, breach of third party Intellectual Property Rights, bribery or corruption, death or personal injury resulting from the negligence of either party or any of its employees or agents, nor will they operate to exclude or limit any statutory rights which cannot be excluded or limited.
18. Intellectual Property
18.1 “Intellectual Property Rights” means any and all (i) rights associated with works of authorship, including but not limited to copyrights, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents and (v) all other intellectual property rights in any jurisdiction throughout the world.
18.2 To the fullest extent permitted by law, Advantio retains ownership in all Intellectual Property Rights in the Services. Upon receipt of full payment of the Services by the Customer, Advantio will grant the Customer a perpetual, non-exclusive and non-transferable license to use, copy, reproduce, display, or distribute any materials made available by Advantio in connection with the Services.
18.3 The Customer will retain sole ownership of all Intellectual Property Rights in connection with any original documents and material it provides to Advantio for use in connection with the Services. In no event will Advantio be liable for any claims related to or arising from the Customer’s improper use of the Services.
18.4 Customer agrees that all methodologies, procedures, management tools, workshops, manuals, software, object code, source code, data files, concepts, ideas, inventions, know-how, and other intellectual property Advantio has developed, created, or acquired prior to or during the performance of the Services and processes developed or conceived by Advantio or any Personnel of Advantio in connection with the Services will be the sole and exclusive property of Advantio. The Customer will not have or acquire any right, claim, title, or interest in or any of Advantio’s intellectual property.
18.5 Advantio may make certain software available to the Customer in connection with the Services. The Customer’s use of this software is subject to any software license terms that the Customer may be required to consent to as a condition to using the software.
19. Confidential Information
19.1 “Confidential Information” means all tangible and intangible information designated as confidential by any Party in writing together with all other information which may reasonably be regarded as confidential including, but not limited to, details of the Customers’ information systems, procedures, network configuration, topology, passwords, private encryption keys and details of Advantio’s methodologies. The Services will be deemed proprietary information of Advantio.
19.2 Advantio will not divulge, disclose, share with any third party or use any Confidential Information that has been disclosed by the Customer to Advantio in providing the Services. All results collected from the performance of the Services will be strictly confidential and will be treated as such by Advantio. Such Confidential Information may only be used by Advantio for the purpose of providing the Services.
19.3 Each Party agrees to maintain in strict confidence all plans, designs, drawings, trade secrets and other proprietary information of the other Party that are disclosed pursuant to this Agreement and will not use any such information or materials for any purpose other than in connection with the exercise of its rights and obligations under this Agreement. No obligation of confidentiality will apply to disclosed information that the recipient: (i) already possessed without obligation of confidentiality; (ii) develops independently; (iii) rightfully receives without obligation of confidentiality from a third party; or (iv) becomes publicly known or available. Notwithstanding anything in this Clause, either Party may disclose information of the other Party to a government authority pursuant to a judicial, legislative, or regulatory subpoena, order or proceeding.
19.4 This Clause will survive for two (2) years following the termination or expiration of this Agreement.
20. Data Protection
20.1 In this Clause, “Data Protection Legislation” means all applicable legislation in force from time to time in Ireland applicable to data protection and privacy including, but not limited to, the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 as amended. “Personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” will have the meanings defined in the Data Protection Legislation.
20.2 The Parties hereby agree that they will both comply with all applicable data protection requirements set out in the Data Protection Legislation. This Clause will not relieve either Party of any obligations set out in the Data Protection Legislation and does not remove or replace any of those obligations.
20.3 For the purposes of the Data Protection Legislation and for this Clause, Advantio is the “Data Processor”, and the Customer is the “Data Controller”.
20.4 The Data Processor will, with respect to any personal data processed by it in relation to its performance of any of its obligations under this Agreement:
20.5 Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor will promptly notify the Data Controller of such processing unless prohibited from doing so by law;
20.6 Ensure that it has in place suitable technical and organisational measures to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures will be proportionate to the potential harm resulting from the events, taking into account the current state of the art in technology and the cost of implementing those measures;
20.7 Ensure that any and all personnel with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential;
20.8 Not transfer any personal data outside the EU without the prior written consent of the Data Controller and only if the following conditions are satisfied:
20.8.1 the Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
20.8.2 affected data subjects have enforceable rights and effective legal remedies;
20.8.3 the Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
20.8.4 the Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data.
20.9 Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects and in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
20.10 Notify the Data Controller without undue delay of any suspected or actual personal data breach;
20.11 On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of this Agreement unless it is required to retain any of the personal data by law; and
20.12 Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause and to allow for audits by the Data Controller and/or any party designated by the Data Controller.
20.13 The Data Processor will not sub-contract any of its obligations to a sub-contractor with respect to the processing of personal data under this Clause without the prior written consent of the Data Controller (such consent not to be unreasonably withheld). In the event that the Data Processor appoints a sub-contractor, the Data Processor will:
20.13.1 enter into a written agreement with the sub-contractor, which will impose upon the sub-contractor the same obligations as are imposed upon the Data Processor by this Clause and which will permit both the Data Processor and the Data Controller to enforce those obligations; and
20.13.2 ensure that the sub-contractor complies fully with its obligations under that agreement and the Data Protection Legislation.
20.14 Either Party may, at any time, and on at least 30 calendar days’ notice, alter this Clause, replacing it with any applicable data processing clauses or similar terms that form part of an applicable certification scheme. Such terms will apply when replaced by attachment to this Agreement.
20.15 The Customer confirms that it has (i) obtained all consents and/or authorisations required from the Customer’s clients, end-users, suppliers, partners, vendors and/or licensors to enable such Personal Data to be disclosed to and processed by Advantio, (ii) made all necessary registrations and notifications in accordance with applicable Data Protection Legislation to enable Advantio to carry out the Services, (iii) and is processing all Personal Data in accordance with the legal requirements stipulated by applicable Data Protection Legislation; and (iv) complied with Advantio’s Privacy Policy, which is available at www.advantio.com/privacy-policy.
21. Termination
21.1 Either Party may terminate this Agreement, or any unexpired Service Document hereunder, by giving thirty (30) days’ written notice if:
21.1.1 the other Party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days of the other’s breach. Advantio may cure such material breach of the Services, at Advantio’s sole option, by either (i) re-performing any defective or non-conforming Services, or (ii) refunding any amount paid by the Customer to Advantio for the part of the Services that are deemed to be defective or non-conforming. For the avoidance of doubt, the Customer’s non-payment of any invoice sent by Advantio will be considered a material breach of this Agreement;
21.1.2 the other Party becomes bankrupt or insolvent or makes any arrangement with or for the benefit of its creditors or (being a company) enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bone fide reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertakings or if any distress or execution is threatened or levied upon any property of the other Party or if the other Party is unable to pay its debts as they fall due;
21.1.3 if there is a Change of Control, by either Party within a period of six (6) months following the Change of Control. Change of Control occurs if a person who controls a body corporate ceases to do so or if another person acquires control of it.
21.2 Advantio may immediately terminate this Agreement upon written notice to the Customer if, in its sole discretion, Advantio determines, and can demonstrate, that a conflict of interest exists or may develop between Advantio and the Customer.
21.3 Upon the termination or expiry of this Agreement, (i) all Fees in the Service Document(s) will become due and payable, (ii) the Customer will immediately pay all outstanding Fees and other amounts due prior to the date of termination or expiry; (iii) each Party will within ten (10) business days, return any materials belonging to the other Party; (iv) the accrued rights and liabilities of the Parties will not be affected; and (v) any and all Clauses which expressly or by implication are to survive such termination or expiration, will do so. For the avoidance of doubt, the Customer will have no right to withhold, deduct or set off any such amounts from the Fees that are due and payable to Advantio.
21.4 On the occurrence of any event which would permit Advantio to terminate this Agreement under this Clause, in addition to all other rights and remedies which Advantio may have at law or in equity, Advantio may, without terminating this Agreement, and in its sole discretion and without further notice to the Customer, suspend performance of any or all of its services under this Agreement, until and unless Advantio determines, in its sole discretion and upon whatever conditions Advantio chooses to impose on Customer, to resume performance of some or all of the suspended services.
22. Notices. Notices required pursuant to this Agreement will be in writing, transmitted to the applicable Party’s respective address, and will be considered given when (a) delivered and signed for by the recipient if sent by certified or registered mail, return receipt requested; (b) signed for by the recipient if sent by overnight courier service; or (c) sent by email with transmission confirmation. Notices to Advantio: Address: Block 4 Harcourt Centre, Harcourt Road, Dublin D02 HW77, Ireland; Email: legal@advantio.com. Notices to Customer: Shall be addressed to the Customer in accordance with the contact details provided by the Customer or such other address as may be designated in writing by the respective Party. For the avoidance of doubt, Notices for this MSA and the Service Document(s) executed hereunder will be addressed to the Customer using the address set forth in the MSA.
23. Relationship of Parties. No license, joint venture or partnership, express or implied, is granted by Advantio pursuant to this Agreement. Neither Party may use the other’s name, trademarks, trade names or other proprietary identifying symbols without the prior written approval of the other Party.
24. Publicity and Announcements. The Customer consents and authorises Advantio to refer to the Customer, directly or indirectly, in any case study, white paper, advertisement, news release, or publication for any purpose including in relation to the publicity of the Services and Deliverables. Customer reserves its right to revoke its consent at any time by sending a written notice to Advantio.
24.1 Force Majeure. A Force Majeure Event is any circumstance beyond a Party's reasonable control that affects the performance by that Party of its obligations under this Agreement, including, but not limited to, inclement weather, climate change, resource shortages, all acts of nature and acts of God, epidemics and pandemic, labour disputes, civil disturbances, riots, terrorist acts, unavailability of or delays in goods or services needed from third parties including but not limited to third party hardware, software, data centre, collocation, and cloud service providers, interruption or outage of or delay in telecommunications including the public internet, voice lines, data lines, or any telecommunications equipment or service, transportation, delivery, power outages, electrical or other utility services, failure of third party hardware, software or services, or any acts or omissions of any third parties. For the avoidance of doubt, only those obligations the performance of which has been recognised by law as being capable of excused by reason of a Force Majeure Event may be so excused under this Clause.
24.2 Neither Party will be liable for any delay in performing its obligations nor for failure to perform its obligations under this Agreement if and to the extent that the delay or failure is caused by a Force Majeure Event affecting its performance of the relevant obligations.
24.3 If either party is affected by a Force Majeure Event, it will use all reasonable endeavours to mitigate and/or eliminate the consequences of such Force Majeure Event and inform the other party of the steps which it is taking and proposes to take to do so.
24.4 If the Force Majeure Event prevents, hinders or delays a party’s performance of its obligations for a continuous period of more than 60 days, the party not affected by the Force Majeure Event may terminate this Agreement by giving 14 days written notice to the affected party.
25. Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party which consent will not be unreasonably withheld or unduly delayed.
26. Subcontracting. Subject to applicable Data Protection Legislation, Advantio may hire or engage one or more subcontractors to perform any or all of its obligations under this Agreement; provided, that (i) Advantio will use the same degree of care in selecting any such subcontractor as it would if such contractor was being retained to provide similar Services to Advantio and (ii) Advantio will in all cases remain responsible for all of its obligations under this Agreement with respect to the scope/provision of Services.
27. Non-Exclusivity. The Parties’ respective obligations under this Agreement are non-exclusive and nothing herein is intended to restrict the Customer as to the purchase or use of any other services, even if such services are similar to the Services provided by Advantio hereunder. Nothing herein is intended to limit Advantio’s right to offer its Services to other customers, even if such customers compete with Customer.
28. Further Assurances. The Parties will cooperate with each other, execute and deliver such documents or instruments, and take all further actions as may be reasonably requested by the Parties from time to time in order to carry out, evidence, or confirm their rights or obligations or as may be reasonably necessary or helpful to give full effect to this Agreement.
29. Dispute Resolution. The Parties hereto will use their reasonable best efforts to resolve any dispute hereunder through good faith negotiations. A Party hereto must submit a written notice to any other Party to whom such dispute pertains, and any such dispute that cannot be resolved within thirty (30) calendar days of receipt of such notice (or such other period to which the Parties may agree) will be submitted to an independent arbitrator selected by mutual agreement of the Parties. In the event that, within fifty (50) days of the written notice referred to in the preceding sentence, a single arbitrator has not been selected by mutual agreement of the Parties, a panel of arbitrators (with each Party to the dispute being entitled to select one arbitrator and, if necessary to prevent the possibility of deadlock, one additional arbitrator being selected by such arbitrators selected by the Parties to the dispute) will be selected by the Parties. Except as otherwise provided herein or as the Parties to the dispute may otherwise agree, such arbitration will be conducted in accordance with the then existing rules of the Charted Institute of Arbitrators. The decision of the arbitrator or arbitrators, or of a majority thereof, as the case may be, made in writing will be final and binding upon the Parties hereto as to the questions submitted, and the Parties will abide by and comply with such decision; provided, however, the arbitrator or arbitrators, as the case may be, will not be empowered to award punitive damages. Each Party will bear its own costs with regards to any arbitration proceeding.
30. No THIRD-PARTY Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties. Nothing in this Agreement, express or implied, is intended to or will confer to any other third-party person or entity any legal or equitable right, benefit, or remedy of any kind whatsoever.
31. THIRD PARTY GOODS AND SERVICES. Customer acknowledges that Customer may, in consuming the Services under this MSA, have entered into contract(s) with third parties for products and services. Customer does so solely at its risk, and Advantio makes no representation, warranty or commitment in relation to the content, function or use of such third-party products and services. Any such contract is between the Customer and the relevant third party and nothing in this MSA is intended to amend, cancel or modify any right or obligation arising under any agreement between Customer and any third-party. Customer agrees to be bound by the terms and conditions of any third party where Customer, in relation to the Services, purchases, consumes, receives or otherwise is provided with third party goods and services.
32. Severability. If any provision of this Agreement is held by a court to be null and void, the remainder of this Agreement will remain valid and will continue to bind the Parties, unless it can be concluded from the circumstances that, in the absence of the provision(s) found to be null and void, the Parties would not have concluded this Agreement. It being understood that where a null and void Clause exists, the Parties will negotiate alternative solutions to such Clause, to allow (as far as possible) for the invalid Clause to be replaced by a provision which is in accordance with applicable law and comes closest to their original intention.
33. Non-Waiver. The failure by either Party to take action to enforce compliance with any of the terms and conditions of this Agreement, or to give notice of any breach, will not constitute a waiver or relinquishment of such right.
34. Electronic Signature. A signed copy of this Agreement delivered by electronic transmissions, including email, is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
35. APPENDING of Signature. For the avoidance of doubt, should either Party fail to sign this MSA and/or related Service Document(s), and the Services under this MSA and Service Document(s) are nonetheless provided by Advantio to the Customer, the performance of the Services will constitute Customer’s acceptance of the terms and conditions of this Agreement.
36. Counterpart. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, and all of which together will constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by electronic transmission or any other reliable means will be effective for all purposes as delivery of a manually executed original counterpart. Either Party may maintain a copy of this Agreement in electronic form.
37. Entire Agreement. This Agreement and the Service Document(s) represent the entire agreement(s) between the Parties relating to the subject matter hereof. There are no other courses of dealing, understanding, agreements, representations or warranties, written or oral, except as set forth herein. These agreements may not be amended or modified, except by a written agreement signed by the authorised representatives of both Parties.
38. Governing Law & Jurisdiction. This Agreement will be governed by and construed under the laws of Ireland. The Parties irrevocably submit to the exclusive jurisdiction of the courts of Ireland, should either Party seek alternative relief than that attained by the arbitration process under Clause 30.
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